LAND LAW — easements — creation of easements — creation by order of court — where easement created by consent under Conveyancing Act 1919 (NSW), s 88K — where plaintiffs seek order “to the contrary” in relation to costs under s 88K(5) — plaintiffs’ application rejected
COSTS — party/party — Court’s discretion — where plaintiffs seek an exception to costs order under Conveyancing Act 1919 (NSW), s 88K(5) — whether first defendant engaged in unreasonable conduct by withholding information — plaintiffs’ application rejected
Quick Take
1A defendant in s 88K proceedings who repeatedly requests that the plaintiff provide a plan in registrable form, precise terms of the easement sought, and supporting engineering evidence before committing to a position on the location of the easement acts reasonably and not in a manner warranting departure from the statutory costs presumption in s 88K(5).
2The statutory onus on a plaintiff under s 88K(3) to specify the terms of the easement and provide a registrable plan is a fundamental aspect of the section that informs the assessment of reasonableness of a defendant's conduct for the purposes of s 88K(5), particularly where the plaintiff's primary claims are advanced on alternative bases that are ultimately abandoned.
3Where proceedings resolve by consent on terms embodying the defendant's expert evidence and proposals, and the plaintiff has failed throughout the litigation to comply with basic statutory requirements for specification of the easement sought, the court will not treat bare denials in the defence or a failure to disclose preferences about easement location as unreasonable conduct sufficient to displace the s 88K(5) costs presumption.
